Judge: Peter A. Hernandez, Case: 23PSCV02299, Date: 2024-04-09 Tentative Ruling

Case Number: 23PSCV02299    Hearing Date: April 9, 2024    Dept: K

1.         The hearing on Plaintiff Robert Lee Johnson’s Motion to Strike First Amended Answer is DENIED.

2.         Plaintiff Robert Lee Johnson’s Motion for Appointment of Counsel is DENIED.

Background[1]  

Plaintiff Robert Lee Johnson (“Plaintiff”) alleges as follows:

On April 13, 2023, Pomona police officers conducted a traffic stop of his vehicle and arrested him. Pomona police officers refused to loosen the handcuffs that were placed on him, causing him injury. Plaintiff was transported to the Twin Towers facility via a police transportation van without a seatbelt; during the ride there, Plaintiff slipped and fell off of the van’s backseat, sustaining a head injury. Plaintiff’s vehicle was also damaged and his personal property left inside the vehicle was taken.

On July 31, 2023, Plaintiff filed a complaint, asserting causes of action against City of Pomona (“City”) and Officers A. Lopez, #424, J. Smith, #42115, P. Hutchinson, #42042 and S. Erfan, #42305 for:

1.                  Excessive Force Tight Handcuffs

2.                  Damages to Vehicle Range Rover

3.                  Negligence Failure to Secure Property

4.                  Tort Personal Injury/Failure to Secure Plaintiff in a Safety Seat Belt

A Case Management Conference is set for April 9, 2024.

1.         Motion to Strike

Legal Standard

Pursuant to Code of Civil Procedure section 436, “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

Discussion

Plaintiff moves the court for an order striking out City’s, Officer Alejandro Lopez’s, Officer Jacqueline Smith’s, Officer Prince Hutchinson’s and Officer Shreef Erfan’s (collectively, “Defendants”) first amended answer, on the basis that it is not verified and that Defendants failed to admit or deny each of Plaintiff’s 37 paragraphs.

Plaintiff apparently seeks to strike the First Amended Answer because Defendants did not comply with section 446 of the Code of Civil Procedure. (See CCP § 446 [“When the complaint is verified, the answer shall be verified.”].) However, a further reading of section 446 provides that in this case, such verification is not necessary. (Id., [“[I]f the state, any county, thereof, city,  school district, district, public agency, or public corporation, or any officer of the . . . city . . ., in his or her official capacity is defendant, its or his answer need not be verified.”].) Here, the Defendants appear to include a “city” and its corresponding police officer. Moreover, the Complaint suggest the “officers” were in their official capacity as policy officers during the alleged incident.

Plaintiff also contends that Defendants needed to individually respond to each of the paragraphs set forth in the Complaint. Plaintiff’s contention is incorrect. Under section 431.30(b) of the Code of Civil Procedure, the answer to a complaint may contain a general or specific denial of the allegations. Moreover, only affirmative defenses shall be separately stated. (CCP § 431.30.) The court’s review of the First Amended Answer demonstrates compliance with section 431.30.

The motion is, therefore, denied.

2.         Motion to Appoint Counsel

Johnson requests that the court appoint counsel to represent him in this case.

 “[T]he general rule is that there is no due process right to counsel in civil cases. Generally speaking, the right to counsel has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation.” (Walker v. State Bar (1989) 49 Cal.3d 1107, 1116.) Johnson is not at risk of losing his physical liberty in this proceeding; as such, he cannot show a right to assistance of counsel.

Johnson cites to Title 28, United States Code, section 1915; however, this statute “confers on a district court the discretion to designate counsel to represent an indigent civil litigant” only in “exceptional circumstances” requiring an evaluation of both “the likelihood of success on the merits [and] the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.” (Wilborn v. Escalderon (9th Cir. 1986) 789 F.2d 1328, 1331 [emphasis added].) This is not a district court. The motion is denied.